# TheAttorney GeneralofTexas :jeptember 25, 1985 JIMMATT’OX Attorney General

Supreme Cowl Building P.0.BOX12549 Austin.TX.79711.2549 51214752501 Telex 910/974-1397 Telecopier 512#75.0255

714Ja~kscm. Suite700 Dallas,TX.75202-4506 214l742-9944

4924Alberta Ave..SUite150 ElPaso.TX.799052793 9151533-3484

1001Texas. Suite700

‘wston. TX.77002.3111 3i2235BB9

505Broadway, Suite312 Lubbock.TX.79401.3479 9061747~5235

4309N.Tenth, Suite B McAllsn. TX. 79501.1685 5121992.4547

200MainPlaza,Suite4W SanAntonio, TX.792052797 512l225dlQl

AnEqualOpportUqitYl Affirmative Action Employer Honorable RayFar&bee @dIdOn No. JM-356 Chairman State Affairs Committee Re: Whether Senate Bill No. 32, Texas State Senate Acts 1985. 69th Legislature, reP. 0. Box 12068, Capitol Station pealed article 4590-4. V.T.C.S.. Austin, Texas 78711 which relates to the removal of cornea1 tissue from adecedent Dear Senator Farabee:
Youaskwhether Senate Bill No. 32, Acts 1985, 69th Leg., ch. 789 at 5699, which is to be codified as article 4590-6, V.T.C.S.. would lmplledly repeal article 4590-4, V.T.C.S. Senate Bill No. 32deals with removal of hvitman organs and tissue. Article 4590-4 deals with removal of cornea1 tissue. Generally. human organs and tissue maybe removed for research or transplant only with the consent of the decedent's family or the prior consent of the ilrcedent. See V.T.C.S. art. 4590-4. In 1977 the legislature enacl,e:d a statutehat allows justices of the peace and medical examlnerrl to permit the removal of a dead person's cornea1 tissue without c13nsent under the following conditions: (1) the decedent died ur&r circumstances requiring an Inquest by the justice of the peace or the medical examiner; (2) the justice of the peace or medical examiner knows of no objection by specified family members; and (3) the remyJa1 will not interfere with the Investigation or autopsy nor alter the post-mortem facial appearance. V.T.C.S. art. 4590-4.Senate Bill No. 32 allows a medical examiner to authorize the removal of various human organs, including eyes, under similar circumstances. Uthough article 4590-4 and Senate Bill No. 32 are similar in structure and content, the procedures set out in Senate Bill No. 32 are more restrictive than those in article 4590-4 in several ways. Sl!nate Bill No. 32allows only medical examiners, not justices of the Peace. to permit removal of organs. Also, under Senate Bill No. 32, the medical examiner mustobtain consent to r-e non-visceral organs, including eyes, within the first four hours after death and after that he mayremove organs without consent only upon "determining that no reasonable likelihood exists that [certain specified family members] can be identified and contacted." ArticleHonorable RayFarabee -

### Paglr2 (~~-356)

4590-4 has no compar le requirement. r Article 4590-4 is more restrictive than Senat ‘:Bill No. 32 in that Senate Bill No. 32 contains no requirement that removal of tissue not alter post-mortem facial appearance. Thus; article 4590-4. unlike Senate Bill No. 32. does not permit removal of ,theentire eye from the socket.
Statutes maybe repeallrd expressly or by implication. Repeals by implication are not fsvo.:ed and two statutes on the same subject should both be given ef$ec:t. if possible. Gordon v. Lake, 356S.W.2d 138, 139 (Tex. 1962). @IO, ageneral law does not ordinarily repeal a specific law by impl&cal::lon. Rather, the special law Is construed as an exception to tb general law. See Flowers v. Pecos River Railroad Co., 156 S.W&d :!60. 263-64 (TX 1941). These rules of construction support the’conclusion that a statute governing removal of cornea1 tissue and a :Later statute governing removal of human tissue and organs generally should both be given effect. Another well establit,hed rule of construction, however, is that an enactment intended to embrace all the law on a certain subject repeals all former lawsion Ithatsubject. McInnis v. State, 603S.W.2d 179 (Tex. 1980). It hs been suggested that this rule supports the conclusion that Senate,$i!.l. No. 32 impliedly repealed article 4590-4 because Senate Bill No. :I;!was intended to embrace all law on the subject of removal of humzrr:tissue and organs without the consent of the decedent or his falpily. The legislative history of Senate Bill No. 32 shows, however,,s th,%t the premise of that argument -- that Senate Bill No. 32was,.nt,ended to embrace all the law onthe subject

-- is incorrect. :i :,S Thebill analysis to Senate Bill No. 32pointed to the success of article 4590-4 in meetipg the demand for cornea1 tissue in Texas and stated that Senate Bil4 NC’

. 32would “expand” current statutes and allow “removal of other organs and tissues under well-controlled circumstances.” We tl#nl: the comments in the bill analysis are evidence that the leg&sl%ture intended Senate Bill No. 32 to be cumulative of article 4590-4.
Even

### more convinc@g is that a bill was introduced in the same legislative session inyhilh Senate Bill No. 32was enacted that would have amended article +$9(1-,4 to change the procedure for obtaining consent to remove cornea1 

### tissue. S.B. No. 1219, Acts 1985, 69th Leg. That bill was passed % t’1eSenate on April 18. Senate Bill No. 32 was passed in the Senatp 0:~the sameday. Transcript, Senate Session, April 18, 1985. Seoaqg Ml1 No. 1219was referred to in a Senate discussion of Senate B,ul No. 32on that day. Thus, we think it is clear that the Senate yes wuare of the existence of each bill when it passed the other and tkat it intended the subject matter of article 4590-4 tobe contained$n ,%statute separate from Senate Bill No. 32.

p. 1630Honorable RayFarabee - Page 3 (JM-356)

Although Senate Bill No. 1219was never considered by the entire Rouse, at least the members of the committee onPublic Health, which considered it, were awa'ce of the existence of both bills. The legislature did not intend for Senate Bill No. 32 to embrace the entire subject of removal of humanorgans and tissue without consent. Thus, even under McInnis, Senate Bill No. 32did not impliedly repeal article 4590-4. SUMMARY

Senate Bill ho. 32, Acts 1985, 69th Leg.,:which is tobe codified as article 4590-6. V.T.C.Sd, did not impliedly ropeal article 4590-4, V.T.C.S:

Ve 

# 4

JIM MATTDX Attorney General. of Texas
TOMGREEN First Assistant Attorney Gt!neral
DAVIDR. RICHARDS Executive Assistant Attorney General
ROBERTGRAY Special Assistant Attorne:r General
RICKGILPIN Chairman, Opinion Cormnittec! Prepared by Sarah Woelk Assistant Attorney Genera:1 APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory JimHoellinger Jennifer Riggs Nancy Sutton Sarah Woelk

p. 1631